Couple files lawsuit against Nevada County over cell phone tower

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Property rights along with fair and equal treatment are at the heart of a lawsuit filed by a Penn Valley couple against Nevada County.

Peter Lockyer and Juliet Erickson filed suit against Nevada County in connection with an ongoing dispute over the location of a 48-foot cell phone tower, which is proposed to be constructed on a Nevada Irrigation District-owned parcel adjacent to the couple’s property on a ridge overlooking Lake Wildwood.

“For the last two years, we have played by the rules as the county has continued to duck and dive,” Erickson said. “We want to uphold our constitutional rights.”

The suit, filed Dec. 7, alleges that the county failed to provide the couple equal protection under the law as mandated by the 14th amendment of the United States Constitution.

In an October decision, the Nevada County Board of Supervisors denied the couple’s two appeals: They approved the Verizon cell tower project, despite the structure protruding slightly above a ridge line, while simultaneously denying the couple’s plans to build an office on the grounds that it protruded slightly above the same ridge line.

Planning Director Brian Foss said during the appeal that the county was following codes and that a separate section of code applies to towers and communications structures, while another section of code applies to residential structures, which accounts for the perceived inequality in how the department applied laws.

“The issue involved a subjective application of codes and required interpretation involving the definition of a ridge line,” Foss said. “(The decision to deny the appeal) was the most practical in the context of all the codes.”

Erickson and Lockyer perceive the decision as the county failing to apply its laws equally to each party. The couple’s lawyer further characterized the county’s order to keep vegetation and canopy intact on the crown of the ridge line as property seizure.

“The purpose of such restrictions was and is to provide cover for a privately owned and operated cell tower on NID’s property,” the complaint read. “Such purpose is neither a substantial purpose nor a legitimate government purpose.”

Erickson said she views the lawsuit as symbolic of individuals who assert their rights despite exertion of power by government forces.

“It feels like a high-speed steam roller has driven over us and we are tired, but somebody has to do this,” she said. “I think it can give other people confidence or a renewed feeling that they can take things like this on.”

County Counsel Alison Barratt-Green said the county does not comment on pending litigation but acknowledged the suit and said her legal team is prepared “to vigorously defend” the board of supervisors’ decision. The lawsuit was filed locally in Nevada Superior Court but was moved to federal court in Sacramento at the request of the county.

“We believed that the plaintiff raised some federal questions and so it should be heard in federal court,” Barratt-Green said.

The county is prepared to defend the suit “in house” and does not anticipate spending additional funds, aside from staff time dedicated to fighting the case, Barratt-Green said.

During the October meeting, many residents showed up at the hearing to express dissatisfaction with how the county was allegedly treating the Penn Valley couple.

“This should’ve never happened,” Joey Jordan, a county resident said. “They should have built (the cell tower) in a way that it didn’t appear above the ridge line. Now, we as taxpayers are most likely going to have to pay for a costly lawsuit to defend this decision, and the county is going to lose.”

Many residents living in the Lake Wildwood gated community have complained of spotty cellular phone reception, which presents a public safety problem and an economic hardship for many, especially those living on the north shore.

“Coverage on the northern shore is spotty or non-existent,” said Don Queen, a Lake Wildwood resident. “Thousands in Lake Wildwood are without cell phone service.”

Erickson and Lockyer said they are not against cellular service but question the location, pointing out that Lake Wildwood residents have turned down the opportunity to build a tower in their neighborhood on several occasions throughout the past couple decades.